Gang Busters and Court-Busters

Gang Busters and Court-BustersCongress muscles in on crime -- and robes

Daytona Beach News-JournalMay 16, 2005

In three rulings last year, the U.S. Supreme Court scaled back the use of federal sentencing guidelines that had been in place 21 years. The rulings required that sentences rely on juries and judges, leaving guidelines in an advisory role only. The rulings didn't simplify a complicated system. But they pushed back the influence of Congress (and political moods) on sentencing by reasserting the federal courts' independence.

Congress didn't take it well, Florida's Tom Feeney least of all: "The Supreme Court's decision," the Ovideo Republican said, "to place this extraordinary power to sentence a person solely in the hands of a single federal judge -- who is accountable to no one -- flies in the face of the clear will of Congress." Feeney's rampant exaggerations masked his biggest resentment. Last year, he led the effort to require the Sentencing Commission to give Congress the names of federal judges who didn't follow the guidelines, an extraordinary power play designed to intimidate the judiciary. The Supreme Court's rulings essentially nullified that act. But it was obvious then that Congress would strike back.

So it has. The House of Representatives on Wednesday approved a bill that increases prison sentences for gang members and redefines gangs to mean any three people (instead of five) who have committed two or more crimes together and, at least, one violent crime. Two other bills would increase mandatory minimum sentences for drug dealers and impose new minimum sentences for people who commit crimes in courthouses. In all, the package both further expands an already-bulging list of federal crimes while rekindling the sentencing issue.

Sentencing guidelines are not necessarily bad. They're founded on the reasonable assumption that it's better to have relatively uniform sentences than leave the severity of punishment entirely to judges' predilection. Why should a judge in Florida hand down a sentence three times as stiff as one handed down by a judge in Iowa for the same offense? But sentencing guidelines are a political animal. They have no claim to be universally just, either. They're the product of political moments, passions, prejudices. Politicians used the sentencing guidelines as a means of looking tough on crime. The so-called crack epidemic of the 1980s, for example, which greatly influenced the severity of sentencing guidelines, has waned, but the sentences it inspired disproportionately influenced stiff punishments for small-time drug users.

Gang violence is becoming the crime issue of the moment and may end up falling just as disproportionately on small-time offenders. The numbers aren't clear, because they depend on hazy definitions of what makes a gang and what constitutes a gang-related act. Congress' redefinition of gang violence will immediately result in a statistical spike in criminal gang activity not related to gangs previously. But does shifting crime numbers from one column to another really mean that gang violence has increased? The answer may not be as clear as Congress' motivation to use gang violence as a means to more political ends. Members of Congress are not only looking for new ways to look tough on crime, but to look tough on the judiciary, too. The gang bill and the two other anti-crime bills let them do both by ramping up minimum sentences and sending notice that Congress will still play a role in telling courts not just who to punish, but how much.

The irony is that the Sentencing Commission, though it was created by Congress, disagrees with minimum sentences. It considers them inefficient precisely because their dragnet approach ignores individual, mitigating circumstances and ends up overloading both the court and penal systems. But just as congressional anti-crime sprees are often less about reducing crime than about appearing to be tough on crime for election season's spotlight, fresh mandatory sentences are less about deterring crime than about posturing against the judiciary. Otherwise, the bills wouldn't be so bare on constructive initiatives such as gang intervention programs on the streets, reform programs for gang members in prison or transition programs for felons leaving prison. Clearly, the will of Congress isn't there.